Fiji Public Service Association v Airports Fiji Ltd [2005] FJAT 24; Award 41 of 2005 (1 August 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 41 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

AIR PORTS FIJI LIMITED

FPSA: Mr R. Singh
AFL: Mr K. Vuataki with Mr K Qoro

DECISION

This is a dispute between the Fiji Public Service Association (the "Association") and Airports Fiji Limited (the "Employer") concerning the dismissal of Mrs Aliti Rakaria (the "Grievor").

The Association reported a trade dispute on 23 September 2002. The Report was accepted on 11 October 2002 by the Permanent Secretary who referred the Dispute to a Disputes Committee. As the employer failed to nominate a representative to the Committee, the Minister authorised the Permanent Secretary to refer the Dispute to an Arbitration tribunal for settlement pursuant to section 5A(5)(a) of the Trade Disputes Act, Cap 97.

The Dispute was referred to the Permanent Arbitrator on 20 November 2002 with the following terms of reference.

"...for settlement over the termination (of employment) of Mrs Aliti Rakaria, Aviation Security Patrol Officer with effect from 9 November 2001 which action the Association claims as unfair, unjustified, harsh and amounts to denial of natural justice. Therefore, the Association seeks the re-instatement of Mrs Aliti Rakaria without loss of salary and other benefits from the date of termination"

The Dispute was listed for a preliminary hearing on 2 December 2002. On that day the Tribunal directed that the parties file preliminary submissions by 30 March 2003. The Dispute was listed for hearing on 9 May 2003.

By letter dated 7 May 2003 the Association wrote to the Tribunal requesting that the hearing date be vacated as the parties were engaged in discussions with a view to settling the Dispute. The Tribunal directed that the hearing date be vacated.

However, the parties were not able to reach agreement and, as a result, the Dispute was listed for mention on 15 September 2004. On that day the Dispute was listed for further mention on 13 October 2004 when a schedule for submissions and a hearing date were to be determined. As the employer was not represented on 13 October 2004 the Dispute was relisted for mention on 19 November 2004.

On 19 November 2004 the Tribunal directed that preliminary submissions were to be filed within 28 days and the Dispute was listed for hearing on 16 February 2005.

The Association filed its preliminary submissions on 19 January 2005 and the Employer filed its submissions on 11 February 2005.

The hearing of the Dispute commenced on 16 February in Suva and continued on 17 February 2005. During the course of the hearing, the employer called three witnesses whilst the Grievor gave evidence for the Association. In addition, Mr R Singh requested that the evidence given by Mr V. Bale and Mr J. Dobui in dispute No 43 of 2002 (heard 14 – 16 February 2005) (Award 40 of 2005) be adopted as evidence in the present Dispute. Mr Vuataki did not oppose the application. At the conclusion of the evidence the parties sought and were granted leave to file written final submissions.

The employer filed its final submissions on 23 March 2005. The Association filed answering submissions on 10 May and by letter dated 11 July 2005 the employer informed the Tribunal that it did not intend to file any further submission in reply.

There is a preliminary matter which must first be dealt with. It would appear that the decision made by the Permanent Secretary to accept the Report of the Trade Dispute was the subject of proceedings in the High Court by way of Judicial Review No 34 of 2002. Although copy correspondence forwarded to the Tribunal would suggest that the Employer had decided to discontinue those proceedings, the necessary documentation was not filed with the High court until 23 November 2004. Furthermore a copy of the sealed Notice of Discontinuance was not made available to the Tribunal until 29 July 2005.

The Grievor commenced employment as a Security Patrol Officer on 26 May 1999 as a result of a Ministerial Directive set out in Legal Notice No 75 of 1999. Prior to that date, she had been employed by the Civil Aviation Authority of Fiji (CAAF) also as a Security Patrol Officer for several years.

The Fiji Court of Appeal in a decision delivered on 19 March 2004 in Fiji Public Service Association –v- Arbitration Tribunal and Airports Fiji Limited (Civil Appeal No. 10 of 2003) concluded that the terms and conditions of employment set out in a Collective Agreement dated 7 August 1998 between the Association and CAAF applied to those former CAAF employees (including the Grievor) who were members of the Association and who had been employed by the Employer as a result of the Ministerial Directive.

Counsel for the Employer informed the Tribunal that the same issue was again the subject of proceedings before the Court of Appeal.

On 27 October 2001 the Grievor was rostered for duty on the day shift at the Air Side Service Door in the Terminal Building. The Chief Security Officer (CSO) Mr S Matakibau and another employee, a Mr K Prakash, passed through the metal detector system.

The evidence given by the three people involved in the incident was in most respects conflicting. Having considered the evidence and having observed the witnesses as each gave evidence, the Tribunal has determined that on the balance of probabilities the sequence of events may be briefly summarised.

The incident occurred in the early afternoon at about 1350 hours on 27 October 2001.

When Mr Prakash passed though the metal detector area, the alarm was activated as a result of his safety boots.

The Grievor did not immediately scan Mr Prakash with the hand detector but remained seated for a short period. She then stood up and scanned him with the detector.

The Tribunal is unable to determine whether the CSO proceeded through the system before or after Mr Prakash. In the final analysis it most probably does not make a great deal of difference. The CSO did not activate the alarm as he passed through the system.

It would appear that the CSO accused the Grievor of being lazy and eventually directed her to go to the General office. There was other conversation between the Grievor and both the CSO and Mr Prakash but the evidence was such that the Tribunal cannot be satisfied on balance as to what was actually said.

The level of security in place at Nadi International Airport at the time was the high – Level 4. This was the reason why the CSO was concerned at the delay and/or reluctance of the Grievor to scan Mr Prakash. The CSO’s evidence was that everyone who passed through was to be subjected to the same metal detection process.

It would appear from the evidence that the demeanour of the Grievor and the manner in which she responded to him annoyed the CSO who relieved her of her duties on that day by directing that she report to the General office. It would appear that she handed in her security ID Card at the General Office.

The Grievor gave evidence that she reported to work the next day and was given outside (land) side duties as she did not have an ID Card for air side duties. This lasted about two weeks until she received a letter dated 8 November 2001 informing her that her employment had been terminated.

The Employer’s Manager Human Resources and Administration (MHRA), Mr Nath, gave evidence that he received the CSO’s Report of the incident from the Chief Executive Officer (CEO) together with email instructions that the Grievor’s employment was to be terminated.

It should be noted that the Report of the incident prepared by the CSO was not put into evidence nor was a hard copy of the CEO’s instructions to MHRA.

The MHRA gave evidence that between the date of the incident (27 October 2001) and the day on which the Grievor received her termination letter dated 8 November 2001, the Grievor was not interviewed concerning the incident.

The termination letter was signed by the MHRA and, omitting formal and irrelevant parts, stated:

"On 27/10/01 you were directed to be on guard duty at the Airside Post between 0800 to 1600 hours. At 1350 hours on the same day SPO K Prakash was seen entering the sterile security zone through the Metal Detector Door, which activated the alarm immediately upon his entry but you failed to act as required by the Standing Operation Procedures (SOP) for the maintenance of level four – security necessary under Fiji Islands National Civil Aviation Security Programme. Immediately after Mr Prakash’s entry into the Zone two other AFL Terminal Attendants went through the Metal Detector Door, which again activated the alarm, but you continued to defy the SOP.

Your failure to justify adequate reasons for failing to adhere to official instruction other than retaliating arrogantly in words and demeanour shown against the Chief Security Officer is not expected from a professional employee maintaining highest level of security at any international airport.

Whilst AFL with assistance from Police and private Security Service is investing most of its resources in maintaining the highest level of security and safety for every customer, your disobedience to lawful instructions and uncompromising behaviour coupled with your attitude towards your own duties and responsibilities at work cannot be accepted any further as our national and international obligations cannot be compromised at any cost.

I am therefore directed to advise you that your employment is terminated with effect from 9 November 2001 in accordance with section 28 of the Employment Act Cap.92"

In his evidence the MHRA stated that it was the combined effect of her failure to perform her duties and the disrespect she displayed towards the CSO which contributed to the decision to dismiss the Grievor.

The Tribunal has concluded that the contents of the letter are not consistent with the evidence given during the course of the hearing. Mr Prakash stated clearly during his evidence that the Grievor did scan him although there was a delay.

He stated that he stood there with his hands in the air waiting to be scanned. The Grievor was setated but eventually stood up and scanned him with the hand detector.

Furthermore, neither the CSO nor Mr Prakash made any reference in their evidence to any other AFL staff involvement in the incident.

The Employer, through the CSO, tendered as Exhibit 1 a copy of Annex 17 to the Convention on International Civil Aviation Titled "Security" and dated April 2002. The CSO did state in his evidence that the Security Officer posted to the Airside door was expected to scan any staff member who triggered the metal detector alarm. The Tribunal was provided with a copy of the relevant Standard Operating Procedure for the security post concerned.

It is not disputed that the Grievor did scan Mr Prakash. The Grievor said in her evidence there was no delay. Mr Prakash said there was some delay whilst he stood there. The CSO said in his evidence that he had to direct the Grievor to scan Mr Prakash. As previously noted the Tribunal has concluded that on the balance of probabilities there was some delay on the part of the Grievor before she scanned Mr Prakash with the hand detector. The Tribunal has concluded that the evidence of Mr Prakash was the more reliable.

The Tribunal has also concluded after a careful consideration of the evidence that there was no expectation that security staff would stand when the CSO passed by. Furthermore the Tribunal has concluded that whatever may have transpired between the Grievor and the CSO after the incident with Mr Prakash the evidence does not support the claim in the termination letter that the Grievor retaliated arrogantly in words and demeanour nor that she displayed uncompromising behaviour.

The termination of the Grievor’s employment by summary dismissal is claimed to be in accordance with section 28 of the Employment Act. Section 28 so far as is relevant states:

"An employer shall not dismiss an employee summarily except in the following circumstances:

(a) where an employee is guilty of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of service;

(b) for wilful disobedience to lawful orders given by the employer;

(c) ......

(d) for habitual or substantial neglect of his duties

(e) ......"

The effect of section 28 is to remove or take away the common law right to dismiss summarily except where paragraphs (a) to (e) are applicable. The section does not confer an unfettered right to summarily dismiss an employee where any of the matters specified in section 28 are present. If any of the paragraphs are applicable, then the common law right to summarily dismiss remains.

At common law, it has been the long held view that only serious or fundamental breaches of the contract of employment entitle the employer to exercise the right. Whether or not the conduct of the employee amounts to a breach of his or her contract of employment of sufficient magnitude giving the Employer the right to summarily dismiss should be determined on the facts of each case. [See Award No. 38 of 1999 and Fiji Public Service & Anor – v- The Arbitration Tribunal and the Fiji Islands Trade & Investment Board – Civil Appeal No.13 of 1999 delivered 19 February 2002].

In the absence of any allegation of previous misconduct and taking into account the particular findings of fact in this Dispute, the Tribunal has concluded that an Employer may have reasonably concluded that a formal warning would have been an appropriate disposition. The Tribunal does not consider that the misconduct of the Grievor, as determined by the Tribunal, was of sufficient magnitude to justify the imposition of the most serious penalty available to the Employer.

The Tribunal has concluded that the Employer did not act reasonably when it decided that the Grievor’s misconduct was sufficiently serious to warrant summary dismissal.

The Tribunal is also satisfied that the Grievor was not dealt with in a manner which could be described as procedurally fair. The Grievor was not formally interviewed. She was not given an opportunity to explain the circumstances. She was not given any indication that she was facing further disciplinary action whereby she should seek Union assistance and nor was she given any opportunity to mitigate in relation to penalty.

Under the circumstances the Tribunal is satisfied that the decision to terminate the Grievor’s employment by summary dismissal was unreasonable and unfair.

The Tribunal does not accept the Employer’s submission that the security requirements of the time justified the decision to summarily dismiss the Grievor without affording her procedural fairness. The obligations of the Employer to act reasonably and to adopt a fair procedure are not dispersed with or waived in the interests of current operational requirements concerning airport security.

On the question of an appropriate remedy, the Tribunal has concluded that there is no evidence to suggest that the Grievor does not have the trust and confidence of her Employer and would not continue to be a harmonious and effective member of her Employer’s team. As a result the Tribunal is satisfied that re-instatement is the appropriate remedy.

The Tribunal is satisfied that the Grievor’s conduct was such that a warning would have been appropriate at the time. It most probably is not appropriate some three and half years later. Although the Grievor should be re-instated from the date of her dismissal, she is to be paid only 12 months arrears of wages with the balance deemed leave without pay. The delay in finalising this Dispute has been substantially brought about by the failure of the Employer to effectively discontinue the aforementioned Judicial Review proceedings.

The comments made in Award 40 of 2005 concerning the Collective Agreement and pending Court of Appeal proceedings are also applicable in this Dispute. It is not proposed to repeat them a second time. The Tribunal simply repeats that this decision (and Award) is based on general principles.

AWARD

The Grievor’s summary dismissal was unreasonable. The Grievor was not afforded procedural fairness.

The Grievor is to be re-instated from the date of her dismissal. She is to be paid 12 months arrears of wages and the balance is deemed leave without pay.

DATED at Suva this 1 day of August 2005.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL